Prime Maxi Mall Management Pvt. Ltd., ... vs Department Of Income Tax

This appeal by the Revenue arises out of the order passed by the

CIT(A) on 05.08.2013in relation to the assessment year 2009-10. ITA No.5348/Del/2013

2. The first ground is against the deletion of disallowance of excess

depreciation claimed by the assessee on peripherals of computers

amounting to Rs.38,021/-.

3. Briefly stated, the facts apropos this issue are that the assessee

claimed depreciation @ 60% on Printers, UPS, SMF battery bank, etc.,

by putting these items under the head 'Computer.' The AO did not allow

depreciation at the enhanced rate of 60%, but, restricted it to 15%, being

the general rate applicable to 'Plant and machinery.' The ld. CIT(A)

ordered for the deletion of addition on this score.

4. After considering the rival submissions and perusing the relevant

material on record, we find that this issue is no more res integra in view

of the judgment of the Hon'ble Delhi High Court in a recent case of CIT

vs. BSES Rajdhani Power Ltd. Similar view has been taken by the

Special Bench of the Tribunal in the case DCIT vs. Datacraft India Ltd.

(2010) 133 TTJ (Mum) (SB) 377. Respectfully following the above

precedents, we approve the view taken by the ld. CIT(A) on this score.

This ground is not allowed.

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5. The only other ground is against the deletion of disallowance of

Rs.9,46,433/- made by the AO on account of 'Miscellaneous expenses

written off.'

6. Briefly stated, the facts of this issue are that the assessee wrote off

Preliminary expenses amounting to Rs.1,249/- and Deferred revenue

expenditure amounting to Rs.9,45,184/- and charged the same to the

Profit & Loss Account under the head 'Miscellaneous expenses written

off.' The AO disallowed the same by noting that these were not

allowable under the provisions of the Act. This resulted into a

disallowance amounting to Rs.9,46,433/-. The ld. CIT(A) ordered for

the deletion of addition.

7. We have heard the rival submissions and perused the relevant

material on record. The ld. AR contended that 1/3rd of total expenses

were allowed in the immediately preceding year and similar 1/3rd in a

year prior to that. He submitted that the remaining expenses claimed @

1/3rd of the total expenses claimed as deduction in the instant year ought

to have been allowed. It was put forth that the AO in the immediately

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preceding two assessment years has himself allowed deduction for such

1/3rd each in two earlier years, and one of the assessments was made u/s

143(3) of the Act. We find that the assessment order does not discuss

about the nature of expenditure, nor there is much discussion in the

impugned order about what has been stated by the ld. AR before us. If

the contention of the ld. AR is correct that the AO allowed deduction in

two earlier years at the rate of 1/3 rd each in earlier two years, then we

see no reason for not allowing deduction for the remaining 1/3rd in this

year as well. In the absence of the availability of such details on record,

we are handicapped to ascertain the veracity of this contention advanced

by the ld. AR. Under these circumstances, we set aside the impugned

order and restore the matter to the file of AO for ascertaining the

correctness of the contention about the grant of such deduction at 1/3rd

in the immediately preceding two assessment years. If the claim of the

assessee is found to be correct, then, deduction should be allowed for the

year in question also for the remaining 1/3rd. In case the position turns

out to be otherwise, the AO is directed to pass a speaking and reasoned

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order as per law, after allowing a reasonable opportunity of being heard

to the assessee.

8. In the result, the appeal is partly allowed for statistical purposes.

The order pronounced in the open court on 04.02.2015.

Sd/- Sd/-

[H.S. SIDHU] [R.S. SYAL] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated, 04th February, 2015.

dk Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT (A) 5. DR, ITAT AR, ITAT, NEW DELHI.

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